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Friday, January 15, 2016

ONLINE SYMPOSIUM ON NJAC JUDGMENT-I

The Supreme Court's judgment in the NJAC case is a significant development in India's legal calendar in 2015. While the judgment has received extensive commentary in the media, its implications for Indian Constitutional law are yet to be fully unraveled. Even as the Government is yet to release the revised Memorandum of Procedure for Appointment of Judges, LAOT has thought it fit to initiate a symposium on the judgment, with two of our astute observers agreeing to join the discussion at this stage.

Sudhir Krishnaswamy (SK) is on the faculty of Azim Premji University and is well-known for his book, Democracy and Constitutionalism in India, published by OUP, in 2009. Currently, he is Dr.B.R.Ambedkar Visiting Professor of Indian Constitutional Law at Columbia Law School, U.S.

Arghya Sengupta (AS) is the founder and Research Director at Vidhi Centre for Legal Policy, New Delhi, an independent think tank doing legal research and assisting government in making better laws. It is also active in organising frequent events on contemporary legal issues, with the aim of informing public debate.

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To begin with, what are your general views on the NJAC judgment?

SK: The NJAC judgment is legally unremarkable. The Supreme Court simply reiterated its view on the basic structure doctrine and the status of independence of the judiciary as a basic feature of the constitution. If the court had decided otherwise it would have had to distinguish or nuance it’s prior precedents on this issue.

AS: The NJAC judgment is problematic in two respects: its treatment of checks and balances in the constitutional scheme and the basic structure doctrine. So while Sudhir is right that the Court reiterated its view that judicial independence is a basic feature of the Constitution, they also made it a feature which is so central to the basic structure that even if an amendment were to bolster another feature, it would be unconstitutional. This might lead to an appealing result but leads to bad constitutional law especially since the NJAC unlike the 42nd Amendment was not an egregious attack on the judiciary. In fact it espoused a checks and balances scheme in appointment of judges better than the previous collegium system. In failing to adequately appreciate this dimension, the Court failed in its fundamental task of balancing various strands of the basic structure.

2. In your book, Democracy and Constitutionalism in India, you had pointed out that judicial intervention in the amending process is only likely in the most extreme cases. Do you think NJAC is such an extreme case? Did the amendment and the law threaten to destroy or damage the Constitution?

SK Basic structure review is designed to have a different standard of scrutiny to fundamental rights review. A court will intervene if any fundamental right is ‘abridged or taken away’ but under basic structure review the basic features of the constitution should be ‘damaged or destroyed.’

The Supreme Court has applied this standard with care in most cases but there is an overzealousness that characterizes its willingness to protect the independence of the judiciary. In the last two decades it has intervened in the selection of district court judges, their conditions of service including payment of salaries as well as the selection and functioning of tribunal and regulators. Some critics allege that this is a case of institutional self-dealing where the court is protecting and advancing its own. I would agree if there was evidence that the Indian state invests heavily and pampers the court system. Unfortunately the courts and the legal system in a dismal state of disrepair and hence judicial intervention in this arena appears to be more benign.

AS: I agree entirely. To take Sudhir’s point further, I think the NJAC judgment dangerously lowers both the standard and intensity of basic structure review to such an extent that in the future most writ petitions, whether it be challenging statutes or constitutional amendments will have a pro forma prayer, much like the 14-19-21 challenge today, that the impugned law is violative of the basic structure.

3. It has been argued that judicial primacy is only a facet of judicial independence, and there are other facets. This amendment only seeks to dilute judicial primacy, and therefore, it would not have brought down the edifice, as feared. In Kuldip Nayar, the Court allowed the amendment on a similar ground, whereas in NJAC, the Court refused to do the same. Also, the contention that judicial independence or primacy were not listed as basic features initially in the Kesavananda Bharati judgment, but have been elevated by the judiciary as basic features. Can derivatives be elevated as basic features? If so,what will be the consequences?

SK Basic features of the constitution are constitutional principles that can play several roles in adjudication: they may in a few cases operate independently and offer reasons for decision; in most cases they will yield derivative norms that settle the case at hand; in a third set of cases they may help judges fill gaps or resolve ambiguity or indeterminacy in the interpretation of constitutional rules.

In the NJAC judgment the court is unclear what the basic feature at stake is: separation of powers; independence of the judiciary; primacy of the judiciary in the appointment of SC and HC judges. For reasons of elegance and consistency it may be best to state basic features of the constitution at the broadest level of generality: in this case separation of powers. The courts extensive recourse to independence of the judiciary and primacy of the judiciary is best seen as being about the derived norms that apply to the case at hand.

The catalogue of basic features in Kesavananda has never been treated as an exhaustive and final list. Basic features are isolated through common law adjudication by the criterion I elaborate on in the book.

In Kuldip Nayar the court applied the damage or destroy standard of review in a more predictable fashion. As I suggested earlier the judiciary cases in the last two decades have seen the court interfere more readily.

AS: I would like to make two points. First, a close reading demonstrates that judicial primacy was not read in to the basic structure in this case as has been commonly assumed. What has instead, according to me, is mandatory consultation with the Chief Justice of India (understood as the collegium). As a result, a certain textual portion of Article 124 and 217 has been elevated to the status of a basic feature. This is contrary to Kesavananda Bharati which expressly allows any text anywhere in the Constitution to be amended, even in Part III. For more details, please refer my EPW piece.

Second, in order to resolve your question, the two-step approach followed by Justice Chelameswar is more appropriate. He understands the basic structure to comprise several basic features. When a law is challenged, one will have to first ask whether it relates to one of the basic features and adversely affects it. If it does, then the second question is whether it affects it in a manner that abrogates the basic structure itself. This two-step test allows for balancing variable impacts of a law on different facets of the basic structure and restores the caution with which the Courts have, and were expected to, approach basic structure review.

4. In your book, you have justified the recourse to referendum to alter the basic structure. What if the Court strikes down even such amendments, notwithstanding that they were approved in a referendum, because they destroy or damage the basic structure? In a hypothetical case, let's say the NDA had promised NJAC, with all its features as it unfolded, in its manifesto, and its campaign speeches in the 2014 elections; should it not be considered as a referendum of sorts? Should Constitution be amended to provide for the referendum route, or could it be implied in an electoral verdict, and Parliamentary support.

SK In my book I did show that there are obiter observations in the basic structure cases to support the view that it was a restraint against the existing constitutional modes of amendment. The facetious argument in court that the presence of a bipartisan majority and state ratification must lead to the non-application of basic structure review fundamentally misunderstands that it is precisely to these conditions that the doctrine responds. So its presence in the NDA manifesto makes no difference to its constitutional validity.

Previously I thought that basic structure review would leave open the possibility of extra-constitutional popular amendment: like referendums. As basic structure review gets entrenched in our constitutional practice I am more skeptical of this view today. I sense that basic structure review operates more as a form of judicial ratification of the amendment process much like the role played by the South African court in the Certification Judgments. I have not worked what the implications of this new understanding of the basic structure doctrine might be and hope to write more on this shortly.

AS: There are two ways in which your question can be interpreted. First, can the Court strike down amendments pursuant to a referendum? Most certainly it can since the Court’s constitutional anti-majoritarian role is as significant against Parliament as it is against the majority of the population that Parliament represents. Whether this ought to be the proper role of basic structure review or not is an entirely different question.

And a minor quibble with Sudhir, no argument that the presence of a bipartisan majority and state ratification must lead to the non-application of basic structure review was made in Court. I was in Court on all 31 days of the main hearing and not a single counsel made this argument. The fact of a bipartisan majority was made to demonstrate that the Parliament in its unanimous wisdom felt that the time for a change of law had come, not that such wisdom could not be constitutionally reviewed.

The second, more interesting way in which your question can be interpreted is whether the Court will strike down an amendment through the process of Article 368 as it currently stands, which provides for a facet of the basic structure, say secularism, to be amended by referendum. I think there is a high probability given that limited amendability is part of the basic structure that such an amendment would fall foul of it. Alternately one could argue that such an amendment does not affect secularism itself but only provides for a way in which secularism could cease to be part of such basic structure. If anything, the referendum results (if yes) could be held violative of the basic structure.

5. Unlike in the Kesavananda Bharati Judgment, the initial response to the NJAC judgment has been mixed. In the Kesavananda, those who were critical of it initially, later accepted its usefulness. Do you think similar thing playing out in NJAC? Is it a Kesavananda moment in India's Constitutional and political history?

SK The Kesavananda judgment initially received mixed reviews. The NJAC judgment has received strong push back from the executive and some academic and policy commentators but has found support in some quarters. The longer term legitimacy of the NJAC may well turn on the ability of the court to reform the collegium process to make the higher judiciary more transparent and accountable to the people. If it achieves the ability to retain the trust of the people through direct participation, then it can emerge as a counter-democratic institution with higher trust than the executive and the legislature.

I don’t see how the Kesavananda and NJAC judgments are similar either in constitutional law terms or in their political impact. For me the comparison between the two decisions is hyperbolic and not substantive.

AS: Only time will tell and I’m no clairvoyant. But I agree with Sudhir that much will depend on how the collegium reforms itself. The initial signs are not promising with the much-vaunted consequence hearing to reform the collegium having become both chaotic and a damp squib at the same time. Nothing particularly reformative has been suggested by the Court in its latest order. Justice Chelameswar’s words might prove prophetic: ‘reform, that you may preserve’. If the Court doesn’t, then the initial negative reviews of the NJAC judgment might well be proved right.

In any event, since unlike Kesavananda, in NJAC the Court didn’t create new doctrine, there is no positive useful function that it might be seen to serve over time. Over time it could either be seen as a plain bad judgment (if the collegium continues to function in an opaque manner) or an inconsequential one (if a new appointments method is passed by Parliament), but certainly not a useful one.

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